State attorneys general are in a fight with Google to ensure fair business practices: Patrick C. Lynch

View full sizeTorsten Silz, Associated Press A mouse is moved over a Google mousepad at the Frankfurt Book Fair in Frankfurt, Germany in October 2010.

At a time when an equal number of Democrats and Republicans serve as attorneys general in our 50 states, a bipartisan consensus is growing among top state law enforcement officials that Google's business and privacy practices merit closer scrutiny out of concern for consumers' welfare.

Yet, rather than meet these concerns head-on, Google is making an insidious argument in an Ohio appeals court case that state attorneys general lack the authority to enforce the very consumer protection laws they were sworn to uphold.

Ohio Attorney General Mike DeWine responded with an amicus curiae brief filing in the case on March 23 that Google's argument is absurd. DeWine argues forcefully that Google is not exempt from state laws that protect consumers and the free market from abuses.

Google is one of the largest corporations in the country. It dominates the U.S. market for online search and search advertising, with a 79 percent market share -- making it the gatekeeper most pass through to find other sites on the Internet. Google's business practices affect most consumers in the country multiple times every day, which is why it's so important that state attorneys general preserve their legal authority to ensure that the search engine giant is not violating state consumer-protection laws.

Two recent actions by Google represent a clear effort to frustrate state attorneys general from their core missions of protecting consumers and ensuring fair competition. Right here in Ohio, Google brazenly argued to a state Court of Appeals that the Ohio attorney general cannot enforce Ohio's law prohibiting unfair and anti-competitive business practices against Google. Google's argument is that Ohio law is pre-empted by a federal statute designed to police indecent and obscene content on the Internet -- a federal law that Google has argued in court filings is unconstitutional when applied to its business practices. Not surprisingly, an Ohio state trial court rejected Google's argument about federal pre-emption of state law in December. Yet Google continues to argue in court filings that a federal statute gives it cover for violating the laws of Ohio and other states that prohibit unfair competition.

Google also recently rejected a request made by 36 state attorneys general to meet with CEO Larry Page to express their concerns about Google's sweeping changes to its privacy policy and inquire about Google's measures to protect consumers' privacy. Google's plan to "consolidate" the privacy policies of its numerous online services, such as Gmail, YouTube, Google Maps, Google Search, Google Shopping, Google Travel and Google Books, will allow the company to track, combine and store information it learns about its users every time they log into one of Google's popular services.

But instead of recognizing the attorneys general's valid concerns, Google did not even bother to schedule a meeting, much less delay the implementation of its controversial privacy policy.

One might expect Google to be attuned to the concerns of numerous state attorneys general, given that it has been reported that the company already was under serious and substantial investigation by six of them (including Ohio's DeWine), not to mention the Federal Trade Commission and its counterpart in Europe, the European Commission.

A typical state attorney general focuses on two core principles in enforcing laws related to the private sector: protecting consumers from abuses and promoting fair business practices. It is critical that state attorneys general be able to police businesses operating in their states to protect consumers from unjust and unfair business practices.

We live in a free country with free markets that give Google wide latitude to run its business empire. But that freedom is not unfettered; it is bound by numerous laws, including state competition and consumer protection laws.

As a former state attorney general, I am distressed that Google continues its campaign to diminish the important role of these officials in promoting fair business practices and protecting consumers. No one in our country is above the law -- not even a company as successful as Google.

Patrick C. Lynch was Rhode Island's attorney general from 2003 to 2011, and is a past president of the National Association of Attorneys General. He represents a coalition of Internet-based companies that advocates for the enforcement of antitrust and consumer protection laws, FairSearch.org